Karnataka High Court
Venkataswamappa vs Smt Chowdamma on 13 December, 2023
Author: K. Natarajan
Bench: K. Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
REGULAR FIRST APPEAL NO.1774 OF 2017
BETWEEN:
VENKATASWAMAPPA
SINCE DECEASED BY HIS LRS:
1 (a) V. BYANNA
AGED ABOUT 51 YEARS,
S/O LATE VENKATASWAMAPPA,
1 (b) SRINIVAS.V.
AGED ABOUT 46 YEARS
S/O LATE VENKATASWAMAPPA
NO.1 AND 2 RESIDING AT:
NO.22, 4TH CROSS, PWD ROAD ,
3RD PHASE, BSK III STAGE,
BANGALORE - 560 085.
1 (d) SUJATHA.V.
AGED ABOUT 44 YEARS,
D/O LATE VENKATASWAMAPPA,
VKB MARAMMA TEMPLE STREET,
NEAR MARAMMA TEMPLE,
HULIMAVU, BANNERGHATTA ROAD,
BANGALORE - 560 076.
2
1 (d) MANJULA.V.
AGED ABOUT 42 YEARS,
D/O LATE VENKATASWAMAPPA,
NO.9, 7TH MAIN, 2ND CROSS,
NEAR KAMAKYA SYNDICATE BANK
COLONY, HOSAKEREHALLI,
BANGALORE - 560 085.
... APPELLANTS
(BY SRI. B.R.VISWANATH, AND
SRI. RAJAGOPAL.T.R., ADVOCATES)
AND:
SMT. CHOWDAMMA
1 . MAJOR,
W/O KRISHNAPPA,
NO.85, I CROSS, KETHAMARANAHALLI,
RAJAJINAGAR,
BANGALORE - 560 010.
2 . SHANKAR
MAJOR,
GANESH STORES,
FATHER NAME NOT KNOWN TO THE
APPELLANT.
3 . MEGHARAJ
MAJOR,
SHIVASHANKAR JEWALARY WORKS,
FATHER NAME NOT KNOW TO THE
APPELLANT.
4 . GOPAL KRISHNA
MAJOR,
SARASWATHI SWEET STALL,
FATHER NAME NOT KNOWN TO THE
APPELLANT.
3
5 . RAMADAS
MAJOR,
BABU FANCY STORES,
FATHER NAME NOT KNOWN TO THE
APPELLANT.
6 . SHANKARLAL
MAJOR,
RAJASREE TEXTILES,
FATHER NAME NOT KNOWN TO THE
APPELLANT.
NO.2 TO 6 ARE RESIDING AT
THEIR BUSINESS AT KATTARAGUPPA,
MAIN ROAD. "VIVEKANANDA NAGAR"
43 "A" LAST BUS STOP.
BANGALORE - 560 085.
... RESPONDENTS
(BY SRI. T. SHESHAGIRI RAO, AND
SRI. SUNIL S.RAO, ADVOCATES FOR R1;
VIDE ORDER DATED 30.09.2021, NOTICE TO R2 TO R6 ARE
DISPENSED WITH)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96
READ WITH ORDER XLI RULE 1 OF CPC., 1908 AGAINST THE
JUDGMENT AND DECREE DATED: 27.07.2017 PASSED IN
O.S.NO.677/2009 ON THE FILE OF THE III ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU, PARTLY DECREEING
THE SUIT FOR DECLARATION, MANDATORY INJUNCTION AND
POSSESSION.
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 21.09.2023 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
4
JUDGMENT
This appeal filed by the appellants under Section 96
read with Section 41 Rule 1 of Code of Civil Procedure (for
short 'CPC'), for setting aside the judgment and decree
passed by the III Addl. City Civil and Sessions Judge,
Bangaluru City (CCH.25) in O.S.No.677/2009 dated
27.07.2017.
02. Heard the learned counsel for the appellants and
the learned counsel for the respondents.
03. The appellant No.1 was the defendant No.1 and
the respondent No.1 was the plaintiff, before the Trial Court.
The lands of the parties are retained for convenience.
04. The case of the plaintiff before the Trial Court is
that the plaintiff has filed a suit for declaration, mandatory
injunction and for possession, in respect of scheduled
properties as under:-
i) Schedule - 'A' to the plaint consisting of land in Sy.No.3
of Kattariguppe Village, Bangaluru South Taluk measuring
East - West 76 feet, North - South 62 feet, bounded by:-
East - Property of Venkataswamappa (defendant No.1)
West - Property of Nagappa (Plaintiff's another brother)
North - Property belongs to MSEB.
South - Road
ii) Scheduled - 'B' to the plaint consisting of portion of
Scheduled 'A' property, measuring East - West 43 feet, North
- South 62 feet bounded by :-
East - Property of Venkataswamappa (Defendant No.1)
West - Remaining piece of land belonging to the plaintiff
North - Property belonging to MSEB
South - Road
05. It is contended by the plaintiff that one Seethappa
was survived by three sons and a daughter namely 01)
Narayanappa, 02) Nagappa, 03) Venkataswamappa
(defendant No.1) and 04) Smt. Chowdamma (Plaintiff). The
plaintiff is sister of the defendant No.1, the defendants No.2
to 6 are the tenants of five shops, illegally constructed in B -
scheduled property by the defendant No.1. The plaintiff had
purchased scheduled - 'A' property under the sale deed dated
29.03.1973 from her three brothers and she was put in
possession. She has got changed Khata of scheduled - 'A'
property in her name and she was enjoying the property by
paying taxes. Her husband was a drunkard and the plaintiff
was illiterate and ignorant. Hence, she forced to depend on
her brother - defendant No.1 to manage the schedule - 'A'
property. The defendant No.1 by misrepresenting her that 'A'
- scheduled property was acquired by the BDA for road
widening of 80 feet and to pursue the matter the defendant
No.1 took the sale deed from the plaintiff. Subsequently, he
went on stating that he will get alternate site to her.
Subsequently, she came to know from the BDA that 'A' -
scheduled property was not acquired by the BDA, but it was
acquired by the defendant No.1. The defendant No.1 also
provided the alternative site No.1025 measuring East - West
- 18.90 + 18.60/s and North - South 12.20 meters.
Subsequently, she has realized that the defendant No.1
encroached her 'B' - scheduled property. On questioning the
same, he has abused her in filthy language and put up
construction of commercial complex and has let out them to
the defendants No.2 to 6. The defendant No.1 further trying
to put up construction over the building on the eastern side
of the 'A' - scheduled property by encroaching the 'B' -
scheduled property. Therefore, she has prayed for
declaration, mandatory injunction to demolish the structure
upon the 'B' - scheduled property along with the rents etc.,
06. The defendants No.2 to 6 are placed ex-parte.
07. The Defendant No.1 appeared through advocate
and filed written statement admitting that the land Sy.No.3
consisting of 04 - 32 guntas belongs to himself and his
brothers, out of which 04 acres acquired by the Mysore
Electricity Board Society (MEBS) by leaving 32 guntas. The
said 32 guntas was partitioned among three brothers by
partition deed dated 28.03.1973. In the said partition, the
defendant No.1 was allotted East - West 100 feet, North -
South 65 feet, his brother - Narayanappa has got East - West
175 feet, North - South 65 feet, another brother - Nagappa
has got East - West 122 feet and North - South 80 feet. The
remaining portion measuring East - West 30 feet and North
South 65 feet was gifted to the plaintiff through registered
document dated 29.03.1973. While drafting the gift deed, it
was drafted as sale deed by mistakenly, which mistake
committed by the Deed Writer by showing East - West 76
feet North - South 62, instead of showing East - West 30 feet
North - South 65 feet. The plaintiff was aware about the
error and the sale deed not acted upon. The defendant No.1
constructed building on the 'B' - scheduled property. The
BDA has acquired entire portion of Narayanappa share which
is adjoining to his property. The BDA acquired a portion of
the land for forming 80 feet road. The defendant No.1 left
with portion measuring East - West 20 and North - South 65
feet. He has constructed the Shops in the year 1986 and let
out for rent. Further denying all the averments in the plaint,
prayed for dismissing the suit.
08. Based upon the pleading the Trial Court has
framed 05 issues as under:-
i. Whether the plaintiff proves her title over the
suit 'B' schedule property?
ii. Does she further prove that the 1st defendant
has encroached over the suit 'B' Schedule
property as alleged?
iii. Whether the suit is barred by time?
iv. Whether the plaintiff is entitled for the reliefs
as sought?
v. What order or decree?
09. To prove the case, plaintiff herself examined as
PW.1 and got marked 05 documents as per Exs.P.1 to 5,
except cross-examination of PW.1, defendant No.1 not
entered into witness box and led any evidence either oral or
documents. After hearing the arguments, the Trial Court
answered Issues No.1 and 2 in the affirmative, 03 in the
negative and 04 partly in the affirmative. Accordingly, partly
decreed the suit by directing defendants to demolish and
hand-over 'B' - scheduled property. Being aggrieved by the
same, defendant No.1 filed this appeal. During the pendency
of appeal, defendant No.1 died and his LRs were brought on
record. The respondents No.2 to 6 are the tenants. They
have not contested the matter in both the Courts. The
respondent No.1 was the plaintiff who appeared through her
counsel.
10. The learned counsel for the appellant - defendant
has contended that judgment and decree is erroneous and
property was shared by three brothers and a portion of
property measuring 30 x 62 feet has been gifted to the
plaintiff, but due to clerical mistake, it was mentioned as sale
deed and also measurement was also wrongly shown.
Defendants have not examined before the Court, that cannot
be a ground to decree the suit of plaintiff. The plaintiff
herself has to establish the encroachment made by
defendant No.1. The sketch filed along with plaint was not
marked and proved. The defendant No.1 has constructed
building in the year 1986 by obtaining the permission and
electricity connection. The plaintiff was silent about the
construction which was not objected by her. It is further
contended that the property comes under the BBMP limits.
There is no Khata produced by her. The revenue sketch
khata extract, cannot be a proof of actual possession of the
scheduled property by the plaintiff. The Ex.P.3 does not
disclose the existence of building. Though, defendant No.1
has filed an application for appointment of the Court
Commissioner, which was dismissed by the Trial Court and
the High Court upheld the same. He further contended that
in the southern side of the property, which was admitted that
Board was existing and eastern side acquired by 80 feet
road. In the plaint scheduled no-where the road is existing
on the eastern side. Even in the Exs.P.1 and 2 does not show
that there is road was on the eastern side. After acquisition,
defendant No.1 has retained 20 x 65 feet facing on eastern
side of road. Therefore, 'B' - property is belongs to defendant
No.1, but not belong to plaintiff. Hence, prayed for setting
aside the judgment and decree and to dismiss the suit.
11. The learned counsel for the plaintiff - respondent
No.1 has supported the judgment and decree of the Trial
Court and contended that the plaintiff has filed the proper
suit by filing Misc. Petition in the year 1997 and subsequently
paid the Court fee and numbered as suit in the year 2009.
The plaintiff has successfully proved that she has purchased
'A' - property from the defendant No.1 and his brothers. On
the very next date of the partition deed, till then she is in
possession. The entire property of defendant No.1 was
acquired by the BDA for road formation and the defendant
No.1 has also obtained a alternate site apart from the
compensation. But by taking advantage of literacy and
ignorance of plaintiff, she took the sale deed and a portion
of her property encroached by him. Except written statement
of the defendant No.1, he has not entered into witness box.
The suit was based upon title and possession. The Article 65
of the Limitation of Act apply and suit is not barred by
limitation. Hence, prayed for dismissing the appeal.
12. The learned counsel for the appellant has also
filed an application under Order 41 Rule 27 of CPC for
producing the additional documents for leading additional
evidence.
13. The appellant has contended that these
documents are necessary for proper adjudication of the
appeal. These documents substantiate to effectively present
the defendants and these documents have direct implication
of the judgment rendered by the Trial Court. If this
application is not allowed, he will be put to loss. Hence,
prayed for allowing the application. The said documents are
not able to produced by the father of the appellant during the
trial due to innocence. The building was constructed in the
year 1986 and the first floor was constructed in the year
1992. Hence, prayed for allowing the application.
14. The appellant produced copy of the wiring
contractor test report submitted to the Karnataka Electricity
Board for obtaining the electricity connection on 04.10.1986.
Another document is submitted to the KEB regarding
completion of wiring over the building. The third document is
for application for supply of electricity. The fourth document
is for electricity completion report.
15. The respondent No.1 - plaintiff objected the
application contending that these documents are nothing do
with the judgment of the Trial Court. The appellant has not
produced any documents to show that he was the owner of
the suit scheduled - 'B' property. These documents were not
produced before the Trial Court. There is no evidence led by
the appellant in the Trial Court. Hence, prayed for dismissing
the application.
16. Having heard the arguments and on perusal
records the following points that would arise for my
consideration are as under:-
i. Whether the plaintiff proves that she is the
owner of the scheduled - 'A' property having
purchased under the sale deed dated
29.03.1973.?
ii. Whether the plaintiff proves that the defendant
No.1 encroached the 'B' - scheduled property.?
iii. Whether suit is barred by limitation.?
iv. Whether the appellant made out sufficient
grounds for producing the additional documents
under Order 41 Rule 27 of CPC.?
v. Whether the judgment and decree passed by the
Trial Court called for interference.?
17. On perusal of the evidence on record produced by
the plaintiff which reveals that she has herself examined as
PW.1. Her case is that the land in Sy.No.3 was belongs to
their father Sheetappa. Her father is having four children, 03
sons and 01 daughter. The land measuring 04 acres 32
guntas, out of which 04 acres were acquired by MSEB society
and on the southern side 32 guntas were left out. It is an
admitted fact from the pleading of the both parties that the
MSEB acquired 04 acres of land and remaining 32 guntas
were left out. The plaintiff, defendant No.1 and two other
brothers are the legal heirs of Sheetappa.
18. It is an admitted fact that there was a partition
between 03 brothers on 28.03.1973. In the said partition the
defendant No.1 allotted site measuring East - West 100 feet
and North - South 65 feet adjacent to the property of the
plaintiff on the eastern side and next to the defendant No.1
property, another brother - Narayanappa got his share of
property site measuring 175 feet to East - West and 65 feet
to North - South, which is extreme eastern side of 32 guntas
of land. As per the boundary, Narayanappa portion - South
by Road, East by Road, North by MSEB society property and
west by share of the Venkataswamappa the defendant No.1.
Another brother - Nagappa has got East - West 122 feet and
North - South 80 feet, which is on the extreme western of 'A'
- scheduled property of the plaintiff. After these 03 portions
of the property shared by the defendant No.1 and his brother
another portion on the western side of the defendant No.1
property measuring 76 feet by East - West and 65 feet by
North - South, has been purchased by the plaintiff under sale
deed dated 29.03.1973.
19. To prove her case she herself examined as PW.1
and got marked Exs.P.1 to 5. The Ex.P.1 is the partition deed
dated 28.03.1973. The Ex.P.2 is the sale deed dated
29.03.1973. The Ex.P.3 is the demand registered extract.
Ex.P.4 is the tax receipt. The Ex.P.5 is the encumbrance
certificate from the year 1989 to 1996. Except denying the
averments in the plaint, the defendant No.1 has not led any
evidence nor produced any documents.
20. The contention of defendant No.1 in the written
statement is that though he has admitted the partition, but
he has stated that on the western side of his share, a site
measuring East - West 30 feet and North - South 65 feet has
been gifted to the plaintiff by her brothers. Out of his share
BDA acquired a portion of the land and left with remaining
portion of 20 feet by East - West and 65 feet by North -
South was retained by him. He has constructed a building. Of
course the defendant No.1 was not entered into witness box
to prove his contention that the property was gifted to the
plaintiff which was only 30 x 65 feet. He also taken specific
contention that it was gifted to her, but the Ex.P.2 is a sale
deed dated 29.03.1973 for having purchased the said
property for Rs.500/- in the year 1973. The Ex.P.2 was not
challenged by the defendant No.1 either by examining any
witnesses either his brothers or produced any documents to
show that the sale deed dated 29.03.1973 is not the sale
deed and it was gift deed and the plaintiff was gifted only 30
x 65 feet, but not 76 x 62 feet. Therefore, without any
evidence either documentary or oral, mere taking oral
contention that the written sale deed as per Ex.P.2 is not
correct, cannot be acceptable. As per Sections 91 and 92 of
the Indian Evidence Act, no oral evidence can be led to
contradict the contents of the written document. The written
and registered document is admissible in evidence. The oral
evidence of the defendant i.e., in the cross-examination is
not sufficient to prove that Ex.P.2 is not the sale deed and it
is only a gift deed and it is mentioned as the sale deed as per
Ex.P.2 is incorrect.
21. On the other hand, the defendant No.1 has also
not produced any documents to show that what was the
measurement of the land or his site which was acquired by
the BDA for formation of road. Admittedly, he has received
the compensation apart from that he has got alternative site
No.1025 in some other place. But taking advantage of the
ignorance of the plaintiff, he has encroached the property of
the plaintiff. He has constructed the shops illegally and let
out to the tenants. Therefore, the construction of the
building, obtaining the electricity connection and letting out
for the tenants, were all immaterial as the defendant No.1
was not at all owner of the 'B' - scheduled property, but he
has encroached the same from the plaintiff. If at all the
defendant No.1 not accepting the Ex.P.2 as not a sale deed,
he could have filed a suit for cancellation of the Ex.P.2 sale
deed and the measurement also incorrect. On the other
hand, the Exs.P.1 and 2 clearly reveals that there is a
partition among 03 brothers. The second portion of the
property is in between share of the said Nagappa and share
of defendant No.1. The plaintiff has purchased the 'A' -
scheduled property for valuable consideration as per Ex.P.2.
Thereby, the plaintiff proved that the she is the owner of the
'A' - scheduled property and also the defendant No.1
encroached the 'B' - scheduled property.
22. Therefore, the contention of the defendant No.1's
counsel in the appeal is that the building constructed in the
year 1986 and electricity was obtained. Of course the
additional documents reveals that the property was
constructed in the year 1986 and 1992. He has obtained the
electricity connection, but suit was filed in the year 2009. It
is pertinent to note that the plaintiff has filed the proper suit
in the year 1997 and in the year 2009 she has paid the Court
Fee. Therefore, suit was registered in the year 2009, but for
the purpose of limitation, she has filed the petition in the
year 1997 itself for declaration and seeking possession. As
per 65 of the Limitation Act, 12 years is prescribed.
Therefore, the suit is not barred by limitation.
23. Though, the appellant produced some documents
regarding obtaining the electricity connection for the
building, by an application under Order 41 Rule 27 of CPC,
but documents not useful to the appellant's case. On the
other hand, it support the plaintiff's case, regarding
encroachment of 'B' - Schedule Property. That apart the
defendant No.1 has not at all adduced the oral or
documentary evidence before the Trial Court. The legal heirs
of the defendant No.1 wants to produce some of the
documents in the appellate stage, which is irrelevant to
consider, even otherwise, the appellant has not made out
sufficient grounds, for not producing the documents in the
original proceedings. Therefore, the I.A. filed by the
appellant under Order 41 Rule 27 of CPC is liable to be
dismissed.
24. In view of the above findings, I hold that the Trial
Court after considering the evidence on record adduced by
the plaintiff, rightly partly decreed the suit of the plaintiff,
which called no interference from this Court. The appeal is
devoid of merits. Hence, the same is liable to be dismissed.
Accordingly, I proceed to pass the following;
ORDER
i. The appeal filed by the defendants is hereby dismissed.
ii. Interlocutory Application under Order 41 Rule 27 of
CPC, filed by the defendants is also hereby dismissed.
Sd/-
JUDGE
KJJ
CT: SI
